Appeal from the Eleventh District.

Suit to abate a nuisance and for damages. The complaint avers, in substance, that plaintiff is owner and in possession of a tract of about one hundred acres of land, enclosed by a ditch fence ; that the land has been used for agricultural purposes for several years last past; that defendants have wrongfully entered upon said land and constructed a ditch across it, which with its embankments, or the earth excavated, covered a space two hundred rods long and twelve feet wide, rendering so much of his land useless ; that the ditch so meanders as to render it difficult and almost impossible to plow the land along the ditch; that as the ditch extends entirely across the ranch, many bridges are made necessary, etc., and that plaintiff has been damaged in the sum of two hundred and fifty dollars.

Prayer for a “ decree against said defendant, adjudging said ditch to be a nuisance, and directing the same to be filled up and abated, and that plaintiff have judgment for two hundred and fifty dollars damages,” and for all other and further relief.

The answer denied all these allegations, except as to the actual digging of the ditch, and averred plaintiff’s consent to the digging of the ditch, defendants to pay for growing crops and repairing fences; that it was an advantage to plaintiff, and that defendant— a mining corporation—had a right to dig it for mining purposes.

On the trial plaintiff offered a witness (Berry) as to damages, and asked him what it would cost to fill up the ditch as it was before.

Defendant objected to the question as irrelevant, and not a proper basis for damages. Objection overruled, defendant excepting. On cross-examination, defendant offered to show that the ditch was a benefit to the ranch. Objected to by plaintiff and ruled out.

The statement in the record as to a license to defendant to dig the ditch is as follows:

“ Defendant attempted to show a parol license from the plaintiff to permit defendant to construct a ditch through his enclosure by proving admissions made by him in casual conversations, but no express contract was shown, nor was there any proof to show the terms of defendant’s pretended license.

“ The substance of the testimony as to plaintiff’s admissions in regard to the license was as follows, to wit: That some member or agent of the corporation had on some occasion spoken to the plaintiff about running a ditch through his enclosure, and aked him if he had any objection. In reply, plaintiff asked him where the ditch would pass through his enclosure, and thereupon a particular point was pointed out to him at which the ditch would enter plaintiff’s enclosure, and the plaintiff said he might not object to the ditch provided he was paid for the damages or right of way, but mentioned no sum which he would take, nor was he offered any sum; nor was there any agreement or understanding whatever as to what sum the plaintiff would accept or the defendant give.”

Verdict for plaintiff for two hundred and twenty-five dollars damages. Decree for that sum, and also that the ditch “ be, and the same is hereby declared to be a nuisance and ordered filled up.” Defendant appeals.